Cornwall and Mirwais

[2009] FamCA 179

FAMILY COURT OF AUSTRALIA

CORNWALL & MIRWAIS [2009] FamCA 179

FAMILY LAW – CHILDREN – Best interests – Child related proceedings – Evidence relating to child abuse – Independent Children’s Lawyer
FAMILY LAW – CHILD ABUSE – Allegation – Supervised contact – Risk to child
FAMILY LAW – EVIDENCE – of a child – Family Report

Family Law Act 1975 (Cth)

B v B (1988) 82 ALR 584
M v M (1988) 166 CLR 69

APPLICANT: Ms Cornwall

RESPONDENT: Mr Mirwais

FILE NUMBER: CAC 2225 of 2007

DATE DELIVERED: 25 February 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 25 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Picker

SOLICITOR FOR THE APPLICANT: Mr Moore

COUNSEL FOR THE RESPONDENT: Ms Haughton

SOLICITOR FOR THE RESPONDENT: Mr Fraser

Orders

1. By way of affirmation of previous orders made by consent on 12 May 2008 and subsequently varied by agreement between the parties.

2. That the child E, born on … August 2005, spend time with her father on each Monday from 5 pm until 7 pm and on every second Saturday from 9.30 am until 5.30 pm, and on every second Sunday, that is, the Sunday immediately following the Saturday referred to, from 9.30 am until 4.30 pm.

3. I further order that the time that the child spends with her father will, and is conditional upon, her being supervised at all times by her paternal grandmother.  I direct the paternal grandmother to be present during the time that the child is with her father and I advise her that if at any point she feels that there is a conflict between the child’s best interests and her remaining with her father that she is to immediately terminate the time that the child is to spend with her father and is to report this to the Court through the Independent Children's Lawyer who will be appointed as one of my subsequent orders.

4. I further order that this order applies until further order and is an interim order pending the determination of other matters in dispute between the parties.

5. I further order the time that the child spends with her father may occur at the home of the father's mother but may also occur at other places provided that the paternal grandmother remains with the child at all times.

6. I further order that this is a matter in which there should be an Independent Children's Lawyer and I request the Director of Legal Aid ACT to provide for such a person to accept this appointment.

7. I further order that I request the Independent Children's Lawyer to liaise with the lawyers for each of the parents with a view to obtaining such information as he or she requires and to facilitate his or her consultation with those lawyers about, if necessary, the appointment of a single expert witness about matters that may need to be investigated in due course.

8. I affirm the request for a family report from Ms W, a family consultant of this Court, in accordance with Terms of Reference which I request that the parties settle between themselves as soon as possible and provide to me in Chambers for a final settling before transmission to Ms W.  As part of the Terms of Reference, I request that Ms W give consideration as to whether further expert evidence would be appropriate to assist the parties to reach a proper conclusion about what would be in the child’s best interests and in particular whether any particular single expert witness may offer particular assistance in this matter.

9. I further order that either parent will not themselves discuss, or allow any other person in their presence to discuss, these proceedings or the allegations that have been raised in relation to potential sexual abuse by the father of the child with the child.

10. I further order these proceedings are otherwise adjourned to me in Chambers on 20 March 2009 at 9.30 am.  

11. I further order Mr N be appointed as the case coordinator in this matter and if any communication with the Court is required, it will be through him. 

12. I give liberty to either party to apply on short notice if the need should arise, and at this point I request that the Chief Executive of the Office for Children, Youth and Family Support intervene in the proceedings.  I accept that the Chief Executive has notice of the proceedings and has so far chosen not to intervene.  I do not believe it is appropriate that the Chief Executive should necessarily intervene, but I want to provide the opportunity given there has already been a contact with the office.

13. I further order the parties' lawyers will provide the draft Terms of Reference to me on or before 4 pm on 13 March 2009.

IT IS NOTED that publication of this judgment under the pseudonym Cornwall v Mirwais is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:  CAC 2225 of 2007

MS CORNWALL

Applicant

And

MR MIRWAIS

Respondent

REASONS FOR JUDGMENT

1. The proceedings before me come by way of transfer from the Federal Magistrates Court and relate to matters concerning the daughter, E, of the parties in proceedings commenced in the Federal Magistrates Court.

2. In short, there are allegations raised that give rise to concerns that the child may have been the subject of sexual abuse by her father because of things that have occurred when the child is with her father.  The matter was transferred to me by the Federal Magistrates Court when it either did not reach hearing, or was at an advanced stage ready for hearing in that Court, but it became apparent that the issues may mean that it was appropriate for the matter to be dealt with under the Family Court's Magellan Programme.

3. The immediate precipitating issue are events on 4 February 2009, in which the child came home to her mother and made certain allegations to her mother about what she said her father did while she was with him in supervised time (made in accordance with orders originally made by consent on 12 August 2008.)  The incidents are alleged to have occurred in the home of the paternal grandparent.  The arrangements about supervision had been agreed between the parties.

4. The evidence in relation to the events on 14 February 2009, before I turn to the broader issues, was in three parts as I have discussed and evaluated with each of the counsel for the parties.  First, the mother records in an affidavit filed 20 February 2009 in this Court, a conversation that she says she had with the child when she returned home on 14 February 2009.   The child is about three-and-a-half years old.  The conversation is outlined at some length in the affidavit, but it suffices to say that the matters referred to were disturbing.  It is reasonable that the mother should feel concerned and need to do something about it as a consequence.  This is particularly so in the course of the history in which allegations had been made previously and investigated.

5. It is important, in the long run, that we find some way of determining why it is that the child is making these allegations.  The first issue, of course, is if in fact what she is saying is true, then her father is sexually assaulting her and this is a matter of grave concern and of particular importance for the future.  If, on the other hand, what she is saying is not factually correct, and I am not suggesting that she is lying in any way, then it is equally important we find out why it is that this is happening because it is really important for her future benefit and wellbeing.

6. Having heard what the child had said, the mother took her to the Child at Risk Health Unit and also took her to the Australian Federal Police (“the AFP”).  The second part of the evidence was an interview conducted by the AFP and I have had the benefit of listening to that interview today.  The third part of the evidence is a report produced by the Child at Risk Health Unit by two doctors.  No-one has made any issue about their qualifications. Dr P is a paediatric registrar and Dr S is a staff specialist.  I have discussed the report with counsel and I will not reiterate my analysis of the report produced.  But it is important in relation to experts that not only do they provide an opinion about what might or might not be a matter within their expertise, but that they should disclose the proper basis and the reasoning upon which they arrived at the conclusions which they did.  The report is prepared in an honest attempt to record factually and appropriately what the two doctors observed.  It fails to make some of the connexions that I would have hoped that it might have made as to probable cause of various symptoms and sequelae of possible events that have happened in the past.

7. The report is not a bad report in any sense of the word.  What it does not do, however, is connect the observations of the doctors with the complaint of the child to her mother and to the interview with the AFP as to what the child has said to them about what happened.  It would be totally unreasonable to expect a child of E’s age to produce a detailed description of what has happened to her in a recent time, let alone a more distant time, and we must be conscious of the fact that if this incident and any other incident in the past is to be investigated, it must be done in the context of what is appropriate for a child of E’s age.  One of the difficulties with any allegation about sexual abuse is that almost invariably, where a child is involved, there are only two witnesses; one is the child and the other is the person who is alleged to have carried out the assault. 

8. It is very rare, in my experience, that someone who is alleged to have carried out an assault, acknowledges that he or she has done so, readily and willingly.  In most cases, they are prepared to say on their oath, which indeed the father has done in this case, that no such assault occurred.  This leaves a situation where the only other person who is able to determine or to say what has happened is a child, and the child is frequently - and I use the word carefully - the victim of the care of the people who are around him or her.  What happens is that the child reports something to a parent.  The parent is reasonably alarmed by what has occurred. The parent takes what he or she believes is an appropriate response by getting advice from a doctor, a psychologist, an appropriate unit of the police, an appropriate unit with the Department of Community Services of New South Wales (or an appropriate equivalent unit in the ACT), a next door neighbour, a friend, a lawyer, a doctor or all of these. The difficulty that arises from the multiplicity of repetition of investigation in events is that the child, after a time, is no longer remembering what happened but rather remembering what he or she has said to the last person and whatever response may have been appropriate.  Each of the people who reports the interview, reports it from a slightly different perspective, and each of them reacts to the child in a different way which they do not necessarily record for the purposes of the proceedings.  It becomes impossible to untangle in many cases, the reaction of the person to whom the child has reported from the story of the child and the response of the reporting person, may in turn dictate what the child says, either on the next occasion or even on that occasion.

9. I have no idea, in this matter, from listening to the AFP tape and reading what the mother has said that the child has told her, what in fact the child was talking about.  It may be that she is reporting that her father has sexually assaulted her; it may be that she is fantasising about something completely different; it may be she is recalling something she has heard in different contexts.  I do not know, and I cannot know.  What is crucial, if we are to ever get to a point where we can help her to live a full and complete life with hopefully the benefit of both parents, is an opportunity to examine the context in which she has spoken and why she might have used the words she did.  This, I might add, is the fervent hope of both parents and that is to their particular credit.

10. What needs to be done, therefore, in this matter immediately is that there should be some assessment, which is what I have been engaged in to some extent this morning and this afternoon with the parents through their counsel.  The question is: what can we do to make an order which will best serve the interests of the child; not the interests of the father, not the interests of the mother, not the interests of the Court, not the interests of counsel, not the interests of anyone apart from E.  Her best interests have to be the criterion upon which I base my assessment.

11. As Ms Picker has pointed out on behalf of the mother, there are two primary considerations in determining what is in the child’s best interest.  I would slightly differently emphasise one of these.  The legislation provides that one of the primary considerations is the benefit to the child in having a meaningful relationship with both parents.  It follows, it seems to me, from a reasonable construction of the wording of the Family Law Act 1975 (Cth), and a construction which is agreed with by some research undertaken and some articles written by the Honourable Professor Richard Chisholm AM, a former Judge of this Court, that the word "benefit" is to be given meaning.[1]  The child could have a meaningful relationship with a parent and it may not be a benefit to the child to have that relationship. This is one of the exercises that I am obliged to conduct in these proceedings.

    [1] Richard Chisholm, “The meanings of ‘meaningful’ within the Family Law Act amendments of 2006: A legal perspective” (2008) 22(3) Australian Journal of Family Law 175.

12. The second matter, which is given primary importance, but no less importance, is that the child must be protected from physical or psychological harm.  It is the balancing of those two matters which the Chief Justice of this Court has described in a number of public forums as the “exquisite dilemma of family law.” The “exquisite dilemma” occurs in this situation as I must be certain that what I do provides safety for E, at the same time, I must so far as is possible to do so in accordance with the provisions of the Family Law Act1975 (Cth), look at the benefit that she would derive from a relationship, moreover a “meaningful” relationship, with each of her parents. There is substantial agreement between the parents that she will derive benefit from a relationship with each of her parents. This is different from many cases that come to me in these circumstances.

13. To some extent, therefore, what I am really looking at is what I need to do at this point to ensure that she is protected from the reasonable possibility of any harm.  I say “reasonable” possibility of any harm for this reason.  It is possible in some cases in family law to make decisions and findings as a Judge about whether something has happened or has not happened, and in the past, it has been remarked by a number of Courts, including the High Court, that it may not necessarily serve a child's interests to come to a conclusion about whether something has happened or not. I do not subscribe to that view, notwithstanding the eminence of those who promulgated it.  I think if it is possible, a Court should make a finding about whether something [relevant] has happened or not.  It is no different in relation to child abuse from any other matter.  Nevertheless, because of the difficulties with the evidence that I have set out a little earlier in my judgment, in some cases, it is not possible for a Court, or in this case for me, to conclude precisely what has happened, and I do not believe that on the state of the evidence at the moment it would be appropriate for me to make a finding. 

14. What the High Court has said in M & M[2] and B & B,[3] two decisions delivered immediately sequentially some time ago now, is that if a Court is of the view that it cannot make a determination, then it must, in any event, make an order which would not impose an unacceptable risk of harm upon a child.  Those words are interesting.  If you look at the two elements, "unacceptable" and "risk", they each convey a different impression.  If the happening of an event was such as to cause the immediate death of somebody then almost any risk would be unacceptable.  If the chances of something happening to someone were a million to one, then almost any risk is acceptable.  It is the balancing of the gravity of the consequences and the likelihood that something will occur, that gives rise to a further “exquisite dilemma”, to adopt the words of the Chief Justice, because it is unthinkable that anyone would knowingly expose a child to danger or risk. Equally it is unthinkable that someone should necessarily preclude a child from a relationship in circumstances where the risk is one which is remote, distant or possibly improbable.

    [2] M v M (1988) 166 CLR 69.

    [3] B v B (1988) 82 ALR 584.

15. In these circumstances, I am asked to make a determination about what is to happen to the child until we can get further evidence of a more expert kind about what she is likely to have done and what, if anything, either of the parents is likely to have done.

16. The parents reached agreement on 12 May 2008 about an arrangement, a graduated arrangement, for the time that she would spend with her father.  That time has subsequently been modified as to commencement and completion times, but the structure remains substantially unaltered.  The initial period that the child was to spend with her father was to be supervised through a professional supervising organisation and was subsequently to move to supervision through the child’s paternal grandmother. There is still, notwithstanding all the things that have happened, and to the enormous credit of the parents (particularly the mother in these circumstances) agreement that the structure that had been put in place about nine months ago now, should remain.  In other words, that there should be supervision.

17. I have indicated to the mother's counsel, and she obtained instructions and has advised me that her client consents, that it would be appropriate for that supervision to be carried out by the paternal grandmother still, in accordance with the original intention of the parties and, as reported by the mother (again to her credit) in the material from the family consultant, as being an appropriate thing to happen.  That level of trust between families who are otherwise divided by horrible allegations is a matter of significant importance for the child’s best interests and reflects the highest possible commendation of a parent.

18. What the mother says, however, is that she is concerned about the fact that if there were to be a continuation of the existing arrangement, that is that the time that the child spends with her father should be in the home of the father's parents, that there is a potential for the risk that I alluded to previously.  I think it is important to analyse the nature of that risk in this context because it is in the analysis that we can read some principal determination about what should occur.

19. It seems to me that there are a number of components to the potential risk that may arise if the child is to spend time with her father in his parents' house, under the paternal grandmother’s supervision.  One is that the allegations that, for whatever reason, the child has made, are true and her father is assaulting her, and moreover, that he is doing so even in circumstances where he is the subject of some supervision.  That is one element to it.  The second is that, as Ms Picker has suggested, there is some potential that there is some other person who is carrying out these activities during these times.  The third is that the paternal grandmother will not fulfil her obligations as a supervising person, and will allow her to be placed in a situation where something can happen to her, notwithstanding that she is in what would otherwise be regarded as safe circumstances.  The fourth is that if she is in the home of the paternal grandmother, that there will be some collective conspiracy among the paternal grandparents and the father, to allow her to be exposed in some way to some physical or psychological danger.  May I say from the start that I discount the last of these propositions completely.  It seems to me that there is no evidence which would enable me to reach such a conclusion.  It is feasible, although I think not probable, that the supervisory activities of the paternal grandmother had either become less vigilant than they had previously been, or were never as vigilant as they should have been.  I do not regard that as a likely possibility, but I accept that it is a possibility.  It seems to me that if that is the identification of that element of the risk, it might reasonably be overcome by the imposition of my enforcing in the strictest possible terms, to the paternal grandmother, the importance of her being present at all times while the child is in the presence of her father.

1. The issue that arises about whether or not there is any geographical connexion between the area of risk and the child, really devolves to this. It is possible, as Ms Picker has submitted to me, that there is something associated with the venue at which the time that the child spends with her father is carried out is undertaken.  It is possible that if the child were to spend time with her father in an external and different place, that that risk would be reduced.  The question, however, is what is the risk and what is the level of acceptability or unacceptability?  If it were certain that there was a connexion between the locality and the risk, then the risk would unquestionably be unacceptable.  In circumstances where there is no obvious connexion between the locality and any possible risk, in my opinion, it is not demonstrated there is an unacceptable risk and, while I would hesitate to say that any risk is acceptable, it seems to me that it is not a component in relation to the concerns and the reasonable concerns that a mother might have about her child.

2. In summary, what it seems to me is this, the existing orders are agreed to continue by consent.  In my opinion, that includes and should properly include the fact that the time that the child spends with her father should be in her paternal grandparents’ home.  I propose to ensure that in the orders I make on an interim basis, the obligations of supervision are spelled out as precisely as I might reasonably do, in favour of the child’s paternal grandmother.

3. There remains the more important task of deciding where we are going for the future and it seems to me that this involves a number of factors. One, that the child needs to have someone appointed to look after her interests and I propose to make an order for the appointment of an Independent Children's Lawyer.  This does not mean that the child has a representative, but rather someone who is there, who does not have the conflicting interest in some cases of a parent to look after as well as the child’s interests.  Counsel quite properly represent the interests of their client.  They have in family law an additional obligation to properly represent the interests of the child, but the conflict that is inherent in that situation should be relieved at the expense of the Commonwealth by the appointment of an Independent Children's Lawyer who is designed to provide a neutral point and a point that will ensure that her interests are properly cared for and I will make such an appointment.

4. In addition, the process is already in train for the development of a family report. The family report is not an answer to the conundrum that is facing the parents in this matter. It is of assistance to them because it provides an independent and expert analysis of the relationship between the child and each of her parents and other relevant people. It provides also some advice about the sorts of responses that one might expect from a child of E’s age, and the likelihood of events that have occurred having some explanation, either sinister in the sense that they might relate to some action on the part of her father, or innocent in the sense that the child is making comments and making statements and complaining about things which have a perfectly innocent explanation. I do not expect the family report to provide me with answers to these difficult questions, but I do expect it to provide me with some assistance in being able to evaluate the relationship between each of the parents and the child, and the relationship between each of the parents and other relevant people in these proceedings. It will give me some idea of the concerns that each of them have about what is in the child’s best interests and ensure that at least in large measure, the other matters that I must take into account in deciding what is best for the child are before me. In this regard, I acknowledge that s 60CC(3) of the Family Law Act 1975 (Cth) sets out in addition to the two primary considerations which I have already spoken about at some length, a number of additional considerations which must be part of my ultimate determination about what is in her best interests.

5. In addition, it seems to me that it is probable that at some point I am going to need the assistance of an expert witness who will be a single expert witness appointed so that there is no contest between the parents, but rather, the seeking out of information which will enable a proper decision to be made, as to whether or not the matters that the child has referred to are either likely, possible, age appropriate, different or whatever may be the result of the inquiry of the relevant expert.  I accept the submission from Ms Haughton that this may be best postponed until such time as the opinion of the family consultant has been obtained.

6. Accordingly, I will make orders as I have suggested in accordance with the reasons that I have just given. I will make directions for the matter to be the subject of a family report as soon as possible.  I will make inquiries about when that can be and I will provide a finalisation of the hearing between the parties as soon as all the relevant evidence is available.

   ORDERS DELIVERED

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.  

Associate: 

Date:  17 March 2009